Court of Appeal of Quebec

Gill c. R.

500-10-006831-182

Levesque, Schrager, Hogue

Appeal from a conviction. Allowed, with dissenting reasons.

The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, convicting him on counts of having, on October 13, 2015, had the care or control of a motor vehicle while impaired and having operated this motor vehicle while his blood alcohol level was in excess of the legal limit. A conditional stay of proceedings was ordered on the charge of impaired driving in accordance with the principles in Kienapple v. R. (S.C. Can., 1974-02-12), SOQUIJ AZ-75111060, [1975] 1 S.C.R. 729. According to the appellant’s version, on that day, he left the premises of a party where he had consumed alcohol with Ms. Dondo, who was driving his vehicle when it hit the wall in a hotel parking lot. Ms. Dondo, however, testified that the appellant was the only one who drove the vehicle. The trial judge found that Ms. Dondo’s testimony was confirmed by the appellant’s admission when he paid the fine and costs requested in the statement of offence issued to him that day (hit and run following a collision involving his vehicle and an inanimate object). In support of his appeal, the appellant argues, among other things, that the judge erred in law by finding that his payment of the fine requested in the statement of offence established an unrebutted presumption that he was the driver of the vehicle.

The appellant acknowledged that he paid the fine in connection with the statutory offence. However, neither the statement of offence nor any documentary proof of payment was filed into evidence. Moreover, the offence was never identified with precision (it appears to be that under s. 171 of the Highway Safety Code (CQLR, c. C-24.2)). During his cross-examination, the appellant stated that, in his view, he received the statement of offence as the owner of the vehicle. The judge considered the payment of the fine to be a guilty plea pursuant to s. 162 of the Code of Penal Procedure (CQLR, c. C-25.1), that is, an element corroborating part of Ms. Dondo’s testimony and establishing that the appellant was the driver. However, corroboration must stem from the proof of a fact, not a presumption, especially when the presumption in question originates in a provincial statute, not the Criminal Code (R.S.C. 1985, c. C-46). In this case, the presumption of a guilty plea was used by the judge to dispel his doubt as to the appellant’s guilt, which is a breach of the presumption of innocence. The judge erred in law in the effect given to s. 162 of the Code of Penal Procedure. The verdicts are unreasonable. His conclusion that the appellant was the driver was not supported by the evidence beyond a reasonable doubt. He is acquitted.

According to the dissenting judge, the appellant’s admission that he paid the fine requested in the statement of offence issued for the accident involving his vehicle and the wall of the parking lot is admissible evidence that proves the appellant’s post-offence conduct, thereby grounding a reasonable inference, in the absence of any credible explanation, that he was the driver at fault at the time of the incident.

Text of the decision: Http://citoyens.soquij.qc.ca



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